Governor’s Council: Necessary or outdated?

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JOSH KUCKENS
Democratic Governor's Council candidate Michael Albano, center, speaks at a panel discussion and debate with fellow candidates Gerry Roy, left, and Kevin Sullivan in the Community Room at JFK Middle School in Northampton prior to the November election.

BOSTON — The most controversial body in the Massachusetts’ government might also be its most obscure.

The Governor’s Council, a once powerful group of elected officials, has seen its duties slowly whittled away. Now, as in years past, there is a movement to end it.

“Once upon a time, it played a significant role in our governance, but really it’s an outdated vestige of a bygone era,” said Sen. Brian Joyce, D-Milton, who introduced legislation to abolish the council last year.

Today, the council’s primary duty is approving gubernatorial nominations to the judicial branch — lifetime positions of judges and clerk-magistrates.

Other responsibilities include providing advice and consent on gubernatorial pardons and commutations and approving nominees to a handful of boards within the executive branch, such as the parole board.

Earlier role

The eight-member panel’s history goes back to a time when it played a much more influential role in the Massachusetts government.

Implemented in the Colonial period as a way for the British king to keep the royal governor in check, the council was given a prominent position in the new state government by John Adams, who wrote it into the Massachusetts Constitution. The council was third in the line of executive succession, ruling for brief periods in the state’s infancy when the offices of governor and lieutenant governor were vacant.

Although it was removed from the executive line of succession early last century, it remained a major player in the state government until the 1950s when its image was damaged by scandals involving judgeships for sale.

Ultimately, five council members were indicted on bribery and corruption charges and the council landed within the sights of Democrats and Republicans who made abolishing the panel part of their party platforms in the early 1960s.

Voters approved a referendum to abolish the council, but Joyce said it proved harder to get rid of.

“It was an inartfully written referendum, and inartfully done process, so that it turns out they’re referenced in the Constitution so that you couldn’t do away with it without amending the Constitution,” Joyce said.

Gov. Michael Dukakis also attempted to abolish the council, but had to settle for creating the Judicial Nominating Commission, which provides the governor with nominations of candidates for the bench.

The governor chooses a name for nomination, and then it goes to the council for approval.

Now the council is again in Joyce’s crosshairs. He cites waste as his motivation.

“I think that we do have a fiduciary duty to the taxpayers to run government as effectively and as efficiently as possible,” he said.

Each of the eight council members makes just over $26,000 a year. They also receive benefits and parking spots for their services, a total price that Joyce thinks is not worth the cost.

“We did a study and saw that they were meeting on average for four minutes, and 99 percent of the nominees were approved,” Joyce said. “It was just a rubber stamp.” In recent years, councilors have often questioned each other more than the judicial nominee they are supposed to be vetting. These inter-council confrontations have added more fuel to the abolition fire.

“The vicious bickering and infighting that comes out of some of the councilors is ample fodder for those who would want to abolish us,” said Thomas Merrigan, who is retiring after six years on the council.

Merrigan said the simple fix for infighting is the democratic process — voting in better councilors rather than abolishing the council.

“We have to have confidence in it that people are going to get weeded out,” Merrigan said.

Even with the council’s faults, Merrigan argues it still provides the public with a crucial voice in judicial appointments.

“I think it’s very important from the point of view of providing the checks and balances that are needed on lifetime judicial appointments by the governor, and I think it’s a venue and a voice for the public to participate through their elected representative,” he said.

Other states

Massachusetts is one of two states that use a special elected panel to approve judges. The other is New Hampshire’s Executive Council.

In 22 states, judges are selected by direct election. Federal judges are approved by the U.S. Senate after being nominated by the president. In 13 states, judges are nominated by the governor or legislature; how those judges are approved varies from state to state.

But finding an alternative to Massachusetts’ Governor’s Council is no easy task.

Merrigan said that electing judges turns the bench into a popularity contest.

“They have to raise money from people who might ultimately be in front of them as lawyers, as parties in a case,” he said.

And Merrigan isn’t keen on the idea of letting the Senate approve judicial nominations.

“If you give it to the Senate where they have all sorts of horses to trade with the governor on judicial appointments it would devolve the process into an enormous quagmire,” he said.

There are other options besides direct election or Senate approval, however.

“We could codify the Judicial Nominating Commission that’s been in practice since Gov. Dukakis, but isn’t actually required by law,” Joyce said.

This would resemble a selection method known as the Missouri Plan that is used by 13 states to select their judges. Under the Missouri Plan, a commission nominates a judge who is approved by the governor without confirmation by a democratic body.

Making the Judicial Nominating Commission part of state law would bring other complications.

“People go through a very thorough screening process to get there, but that’s all in-transparent. It’s all secretive,” Merrigan said.

Merrigan said he understands why the process should be confidential, noting that making it a public process could discourage some lawyers from applying for a nomination.

However, the secretive nature of the commission leaves little room for public oversight.

“It isn’t sufficient because there’s no public voice or transparency to it,” Merrigan said.

The Governor’s Council doesn’t appear to be going any time soon, and those who were seeking its abolition will have four newly elected councilors to work with when the Legislature reconvenes in January.

The elections might have given the Governor’s Council the shakeup it needs to win over detractors. After his legislation lost steam, Joyce chose to support Robert Jubinville’s candidacy in the 2nd District.

“If we had more folks on the Governor’s Council like Bob Jubinville, I’d be a little less inclined to seek its abolition,” Joyce said.

The "Missouri Plan" as this article fails to mention, includes a populist vote on the judges.
I doubt such a plan would stand any chance of passing.
The reality is two fold:
1) The Governor does not like to be questioned by anyone.
2) The judicial selection process is completely political and is not resulting in a good judiciary.